Mitchell v. Social Security

CHRISTOPHER CHIOU Acting United States Attorney District of Nevada Nevada Bar No. 14853 ALLISON J. CHEUNG, CSBN 244651 Special Assistant United States Attorney 160 Spear Street, Suite 800 San Francisco, California 94105 Telephone: (510) 970-4811 Facsimile: (415) 744-0134 E-Mail: [email protected] Attorneys for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA JAZMIN MITCHELL, )

) Case No.: 3:21-cv-00177-WGC

Plaintiff, )

) ORDER GRANTING MOTION TO BE

vs. ) RELIEVED OF PROVIDING PAPER AND CD

) COPIES OF THE CERTIFIED KILOLO KIJAKAZI, ) Acting Commissioner of Social Security,1 ) ADMINISTRATIVE RECORD AND FOR

) PERMISSION TO FILE E-CAR UNDER SEAL

Defendant. )

) 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, therefore, for Andrew Saul as the defendant in this suit. No further action need be taken to continue this suit by

MOTION Pursuant to Local Rule IA 1-4, Defendant, the Acting Commissioner of Social Security (Defendant or Commissioner), respectfully moves for an order to change, dispense with, or waive the requirement per Local Rule IC 2-2(g) that the Commissioner provide the Court with a paper copy of any document over 50 pages in length. Specifically, the Commissioner requests that she be relieved of providing a paper copy of the certified administrative record required to be filed with Defendant’s answer pursuant to 42 U.S.C. § 405(g). Defendant further requests that she be relieved of providing a copy of the CAR on a CD, as has been typically required by the Court. Finally, Defendant requests that she be allowed to file an electronic copy of the CAR under seal. This motion is based on the following memorandum of points and authorities, along with the papers and pleadings on file.

MEMORANDUM OF POINTS AND AUTHORITIES I. INRODUCTION

Local Rule IC 2-2(g) requires that a party “provide to chambers a paper copy of all electronically filed documents that exceed 50 pages in length, including exhibits or attachments.” In Social Security disability cases, the application of this rule means that a paper/hard copy of the certified administrative record (CAR) must be submitted to the presiding judge’s chambers, as CARs will almost always exceed 50 pages in length. Pre-COVID scheduling orders in Social Security disability cases also typically required that Defendant submit a both a paper copy and an electronic copy of the CAR, under seal, to the Court. In addition, Defendant provided the Court with a copy of the CAR on a CD in each case.

As will be explained in more detail below, due to the COVID-19 pandemic, the Social Security Administration has been unable to prepare certified paper and CD copies of the CAR for courts of this district, as has been required. Defendant hereby requests that this Court change, dispense with, or waive the requirement that Defendant provide the Court with a paper and CD copy of the CAR. In addition, Defendant requests permission to file an electronic copy of the CAR (e-CAR) under seal using a new event in CM/ECF that will be accessible to all case participants, including counsel of record. // II. ARGUMENT

A. Local Rule IA 1-4 L.R. IA 1-4 provides that “[t]he court may sua sponte or on motion change, dispense with, or waive any of [the local rules] if the interests of justice so require.” This rule has been applied to, for example, waive the requirements of L.R. IA 10-3(e), which required that the cover page of each exhibit include a description of the exhibit. Gant v. Williams, No. 2:16-cv-00528-JAC-NJK, 2017 WL 2974945, at *1 (respondents argued that adding descriptors to the cover page of each exhibit was unduly burdensome given the large number of exhibits in the case).

B. This Court Should Find under Local Rule IA 1-4 That the Interests of Justice Are

Served By Waiving the Requirement that Defendant Provide a Paper and CD Copy of the CAR to the Court.

Defendant, the Acting Commissioner of Social Security, by her undersigned attorneys, provides notice to the Court and Plaintiff that an electronic copy of the CAR has been prepared and can now be filed in this matter. However, at this time, employees of the Social Security Administration’s Office of Appellate Operations (OAO)—which is responsible for the preparation of CARs for the agency—remain subject to the agency-wide evacuation order due to the COVID-19 pandemic. See 5 C.F.R. § 550.409 (permitting agencies to order employees to evacuate their worksite and work from home during a pandemic health crisis). As a result, OAO is limited on the number of staff permitted to physically enter the office to perform onsite work; the majority of the work is performed via telework. See id. The few employees permitted to occasionally report to OAO’s physical work site in Falls Church, Virginia are currently limited to reporting on a rotational basis to perform a number of OAO’s most vital duties, such as converting paper claim files to electronic format, physically searching for missing paper claims files, processing mail, and completing urgent business that cannot be handled remotely.2 Given the limited staff and overall volume See generally Social Security Administration’s COVID-19 Workplace Safety Plan, available at https://www.ssa.gov/coronavirus/assets/materials/ssa-covid-19-workplace-safety-plan.pdf, p.1: Telework and Remote Work (“We have maximized telework and are performing all portable work remotely. . . . We have a small number of employees and managers working in offices to handle workloads that must be done in the offices, such as managing facilities and security, information technology, limited of cases, OAO is unable to provide paper and CD copies of the CAR—which this Court typically requires. At this time, OAO does not have a timeframe for when staff will be able to return to the office on a more regular basis.

While the Commissioner typically files the e-CAR under seal, as required by the Court, this filing is only accessible to the Court and not by the parties through CM/ECF. However, a new event has been added to CM/ECF which will allow the Commissioner to file the e-CAR under seal and all case participants will have access to the e-CAR. Accordingly, the Commissioner requests that she be permitted to file the e-CAR under seal using this new event (“Certified Administrative Record under seal”) and—pursuant to Local Rule IA 1-4 and in the interests of justice—be relieved of the requirement of providing a paper and CD copy of the CAR for the Court. This will allow Plaintiff to access the e-CAR through CM/ECF and for the case to move forward without delay.

CONCLUSION Despite diligent efforts to ameliorate the impacts of the pandemic, it continues to impact the Commissioner’s ability to process SSA disability appeal cases, including the ability to prepare paper and CD copies of CARs. Rather than staying this case until it can do so, the Court should exercise its discretion by waiving the requirement to provide the Court with a paper and CD copy of the CAR. In addition, the Court should grant Defendant permission to file the e-CAR under seal, as this will allow all case participants to access the e-CAR and for this case to proceed without delay. // // // // // // those approved by management including both employees and a limited number of visitors with

Dated: August 30, 2021 Respectfully submitted,

CHRISTOPHER CHIOU Acting United States Attorney /s/ Allison J. Cheung ALLISON J. CHEUNG Special Assistant United States Attorney IT IS SO ORDERED:

UNITED STATES MAGISTRATE JUDGE

DATED: __A_u_g_u_s_t _3_0_, 2_0_2_1______________